Supra v Police - [2020] NZHC 2959

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF CONNECTED

PERSONS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000270

[2020] NZHC 2959

BETWEEN
NATALIA SUPRA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 9 November 2020

Appearances:

D Schellenberg and C J J Mair for Appellant K O M Fitzgibbon for Respondent

Judgment:

10 November 2020

JUDGMENT OF VENNING J

Appeal against sentence and convictions

This judgment was delivered by me on 10 November 2020 at 2.15 pm.

Registrar/Deputy Registrar

Date……………

Solicitors: Meredith Connell, Auckland
Counsel: D Schellenberg/C J J Mair, Auckland

SUPRA v NEW ZEALAND POLICE [2020] NZHC 2959 [10 November 2020]

[1] Following a defended hearing in the District Court at Auckland Judge A J Fitzgerald convicted Natalia Supra under the Summary Offences Act 1981 on one charge of common assault and one charge of wilful damage.1 Ms Supra was convicted and ordered to come up for sentence if called upon within 12 months on the assault charge and convicted and ordered to pay reparation of $382.60 on the intentional damage charge. The reparation has been paid.

[2] In 2019 Ms Supra applied to the District Court for a rehearing under s 177 of the Criminal Procedure Act 2011 (CPA). Ms Supra wished to pursue a discharge without conviction. In a judgment delivered on 4 June 2020 Judge Fitzgerald dismissed her application for a rehearing and set out the reasons why he considered a discharge without conviction should not be granted.2

Jurisdiction

[3] A preliminary issue arises. That is whether an appeal lies from the Judge’s dismissal of Ms Supra’s application for a rehearing under s 177 of the CPA.

[4] The starting point is that appellate powers are purely statutory. There is no scope to use the Court’s inherent jurisdiction to create a pathway for an appeal that is not provided for by statute.3 Part 6 of the CPA does not provide a direct appellate pathway from a decision under s 177 of the Act.

[5] Mr Schellenberg suggested that resort might be had to an appeal under s 296 CPA on a question of law. Section 296 does provide for an appeal on a question following the determination of the charge. However, without deciding the point, it may be stretching the statutory language to apply it to permit an appeal on a question of law from a decision under s 177 of the CPA. The Court of Appeal have confirmed that an expansive view of s 296 should not be taken.4 As an alternative, in an appropriate case judicial review might lie from a decision of the District Court Judge under s 177.

1      New Zealand Police v Supra DC Auckland CRI-2013-004-013749, 10 September 2014.
2      New Zealand Police v Supra [2020] NZDC 10294.
3      Guy v Preliminary Proceedings Committee of the Medical Council of New Zealand [1995] NZAR 67 HC), (1994) 8 PRNZ…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Supra v Police

Details

AGLC: Supra v Police [2020] NZHC 2959
Case: [2020] NZHC 2959
Decision Date: 10 November 2020

CaseChat Overview and Summary

In this case, Natalia Supra appealed against her convictions and sentence for common assault and wilful damage. The appeal was heard by Venning J in the High Court of New Zealand. Supra argued that the gravity of the offending was overstated and that the consequences of conviction were disproportionate to the offending. The legal issues involved determining the appropriate gravity of the offending and whether the consequences of conviction were out of proportion to the offending.

Venning J found that the Judge had overstated the gravity of the offending by focusing on the fact that the incident was witnessed by Supra's son and the ongoing Family Court dispute. The court found that the offending was a one-off incident involving a single punch and scratches. The consequences of conviction, particularly Supra's inability to obtain employment as an accountant due to her criminal record, were found to be out of proportion to the gravity of the offending.

As a result, the appeal was allowed, the convictions were quashed, and Supra was discharged without conviction on both charges, on the condition that she pay reparation of $382.60. The Court also granted an extension of time to allow the out-of-time appeal.

Orders